Originally published on Advocate.com October 12 2010 1:25 PM ET
A federal judge has blocked enforcement of "don't ask, don't tell" and has ordered the Defense Department to suspend all investigations and discharges related to the policy.
U.S. district judge Virginia A. Phillips, who struck down DADT as unconstitutional last month after a July bench trial in Riverside, Calif., entered her judgment shortly before noon Pacific time on Tuesday and ordered that an injunction against the 17-year-old law become effective immediately.
But Justice Department attorneys may seek to appeal Phillips's injunction to the U.S. court of appeals for the ninth circuit. They have argued that the district judge does not have the authority to block DADT (Phillips previously rejected those arguments in a pre-trial hearing).
Dan Woods, lead attorney for the Log Cabin Republicans, which originally filed the federal lawsuit challenging "don't ask, don't tell" in 2004, called the injunction "historic" but said he expects the government to seek a stay of the decision with the federal appeals court.
The scope of Phillips's decision blocking all enforcement of the policy is nearly identical to the remedy sought by Woods and his legal team in a September court filing. The Justice Department had argued that any injunction against DADT be limited to Log Cabin members only.
"Unless and until the government appeals the case and gets a stay from another court, 'don't ask, don't tell' is no longer the law of the land," Woods said.
Woods and leading advocacy groups warned gay and lesbian service members not to come out, however, just as they advised against coming out when Phillips
struck down DADT in September.
"This order will likely be appealed by the
Justice Department and brought to the [ninth circuit] where
[Phillips's] decision may well be reversed," Servicemembers Legal
Defense Network legal director Aaron Tax said in a statement.
At a Tuesday briefing soon after Phillips issued the injunction, White House press secretary Robert Gibbs told The Advocate he did not know whether the administration would seek a stay of the ruling, nor did he know if any steps have been taken to bring the Pentagon into compliance with the injunction.
"Obviously, there have been a number of [DADT] court cases that have ruled in favor of plaintiffs in this case, and the president will continue to work as hard as he can to change the law that he believes is fundamentally unfair," Gibbs said.
The decision was hailed by advocacy groups and pro-repeal politicians alike. A spokesperson for House Speaker Nancy Pelosi said the Speaker welcomed the news and added that she hoped no more service members would be discharged while legislative resolution is sought.
“The Speaker from the outset has strongly opposed DADT, which the House has voted to repeal," said Drew Hammill. "The Speaker continues to believe, until the Senate can act on the repeal of this policy and send it to the President’s desk, the Administration should place a moratorium on all dismissals under this policy.”
In the Log Cabin Republicans case, Phillips ruled that DADT fails to advance military readiness and unit cohesion. On the contrary, evidence at the two-week trial, which included testimony from discharged service members, showed that the policy has been used to “[prevent]
servicemembers from reporting violations of military ethical and
conduct codes, even in outrageous instances, for fear of retaliatory
discharge,” she wrote.
Christian Berle, deputy executive
director of the Log Cabin Republicans, said Tuesday that a worldwide halt to the policy "was
the only reasonable solution."
soldiers, sailors, airmen, and marines sacrifice so much in defense of
our nation and our Constitution," Berle said. "It is imperative that
their constitutional freedoms be protected as well. This decision is
also a victory for all who support a strong national defense. No longer
will our military be compelled to discharge service members with
valuable skills and experience because of an archaic policy mandating
The text of Phillips's permanent injunction against "don't ask, don't tell":
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
This action was tried by Judge Virginia A. Phillips without a jury on July
13-16 and 20-23, 2010. The Court filed a Memorandum Opinion on
September 9, 2010 (Doc. 232), and an Amended & Final Memorandum
Opinion, and Findings of Fact and Conclusions of Law, on October 8, 2010.
For all the reasons set forth therein, the Court:
(1) DECLARES that the act known as "Don't Ask, Don't Tell" infringes
the fundamental rights of United States servicemembers and prospective
servicemembers and violates (a) the substantive due process rights
guaranteed under the Fifth Amendment to the United States Constitution, and
(b) the rights to freedom of speech and to petition the Government for redress
of grievances guaranteed by the First Amendment to the United States
(2) PERMANENTLY ENJOINS Defendants United States of America
and the Secretary of Defense, their agents, servants, officers, employees,
and attorneys, and all persons acting in participation or concert with them or
under their direction or command, from enforcing or applying the "Don't Ask,
Don't Tell" Act and implementing regulations, against any person under their
jurisdiction or command;
(3) ORDERS Defendants United States of America and the Secretary of
Defense immediately to suspend and discontinue any investigation, or
discharge, separation, or other proceeding, that may have been commenced
under the "Don't Ask, Don't Tell" Act, or pursuant to 10 U.S.C. § 654 or its
implementing regulations, on or prior to the date of this Judgment.
(4) GRANTS Plaintiff Log Cabin Republicans' request to apply for
attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. §
(5) GRANTS Plaintiff Log Cabin Republicans' request to file a motion
for costs of suit, to the extent allowed by law.